The World Court of Human Rights as a long missing solution for the flaws tainting the functioning of the United Nations Human Rights Treaty Bodies

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Faculty of Law

Master Thesis

The World Court of Human Rights as a long missing solution for the flaws

tainting the functioning of the United Nations Human Rights Treaty Bodies

by

Aiste Izmailovaite

Supervisor

Prof. Yvonne Donders

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Abbreviations

CAT Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment / Committee against Torture

CEDAW Convention on the Elimination of All Forms of Discrimination against Women / Committee on the Elimination of Discrimination against Women CERD Convention on the Elimination of All Forms of

Racial Discrimination / Committee on the Elimination of Racial Discrimination

CESCR Committee on Economic, Social and Cultural Rights CPMW Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families / Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families CRC Convention on the Rights of the Child / Committee

on the Rights of the Child

CRPD Convention on the Rights of Persons with Disabilities / Committee on the Rights of Persons with Disabilities

ECHR European Convention on Human Rights ECtHR European Court of Human Rights HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and

Cultural Rights

ICJ International Court of Justice NGO Non-governmental organisation

OHCHR Office of the High Commissioner for Human Rights UDHR Universal Declaration of Human Rights

UN United Nations

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INTRODUCTION

‘Every noble work is at first impossible.’

(Thomas Carlyle)

International human rights law is one of the most striking achievements in the world’s history. Global society witnessed the creation of such important permanent legal institutions like the International Court of Justice (ICJ), the International Criminal Court (ICC) and the three regional human rights courts. Moreover, the United Nations (UN) added an extra dimension to the human rights law implementation and enforcement through the introduction of the so-called UN human rights treaty monitoring system. The treaty monitoring mechanism is vested in the various treaty bodies/committees. Each human rights treaty has its individual committee. Such committees are tasked with the review of the State Parties’ reports, the examination of individual communications/claims and the presentation of General Comments.

The human rights treaty body mechanism in essence is a successful and widely accepted system. With the time passing, more and more states are ratifying various human rights treaties. Some of the treaties are several ratifications away from universal acceptance.1 Countries in general are optimistic about treaty monitoring system because it provides support and guidance without shackling them with binding decisions.2 However, every successful achievement bears certain level of complications and flaws. The treaty body mechanism has fallen victim to its own prosperity. The committees are facing various impediments, for example, massive backlog of pending communications and state reports, lack of independent experts, and lack of financial and human resources. All these deficiencies have gradually built up, thus hampering the

1_{For example, the Convention on the Rights of the Child has 195 State}

Parties; the International Covenant on Civil and Political Rights has 168 State Parties; the Covenant on Economic, Social and Cultural Rights has 164 State Parties, as published in the United Nations Human Rights Office of the High Commissioner for Human Rights, Status of Ratification: Interactive Dashboard’ (last updated 22 May, 2015), page accessed through:

< http://indicators.ohchr.org > (page last accessed on May 29, 2015).

2_{This could be affirmed by astonishing numbers of State Parties to various}

UN human rights treaties and their Optional Protocols. Forexample, thereare 115 State Parties to the ICCPR Optional Protocol, 106 State Parties to the CEDAW Optional Protocol. Membership data is published in the United Nations Human Rights Office of the High Commissioner for Human Rights, ‘Status of Ratification: Interactive Dashboard’, page accessed through: < http://indicators.ohchr.org/ > (page last accessed on 17 July, 2015).

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effectiveness of the committees’ work. However, it is not the committees or State Parties that suffer the most, but human rights beneficiaries – ordinary human beings. Individual claimants meet confusing compartmentalized communications systems, lengthy proceedings, as well as lack of states commitment to abide by committees’ non-binding decisions. It is devastating because treaty bodies are the only international human rights fora accessible on a global level. This is the case due to absence of a regional human rights court in Asia.3

Five years ago, a group of renowned human rights scholars revived the idea of a World Court of Human Rights (WCHR), which in late 40s was passionately advocated by Australia. In 2014 the World Service Authority initiated a parallel WCHR project. The key idea behind these proposals is to establish a permanent human rights adjudicator, which would provide internationally accessible and legally binding human rights remedy for the global community. The idea of the WCHR has certainly stirred up the debate between various human rights scholars, judges and politicians. Some say it is a long-needed modernization, while others call this idea utopian and politically challenging.4

The creation of the WCHR should not be seen as a miracle happening in one day. As the old saying goes, ‘Rome was not built in a day’; the same goes to the development of international human rights legal framework. However, this thesis argues that the WCHR could be an additional human rights protection tool next to the treaty bodies’ apparatus5_{, especially} because treaty bodies need to concentrate on state reports review. Extensive procedural analysis and careful weighing of advantages and disadvantages will reveal that the WCHR project could be worthwhile to materialize. In this regard, the thesis will also examine origins of the two parallel World Court proposals, as well as their take on selection of the judges, Court’s jurisdiction and admissibility criteria.

3_{Today it is registered that Asian region has more than four billion people,}

4.384.844.000 to be exact, as published in the Population Pyramids of the World from 1950 to 2100, page accessed through: <

http://populationpyramid.net/asia/2015/ > (page last visited on 29 May, 2015).

4_{P. Alston ‘Against A World Court for Human Rights’ (2014), Ethics &}

International Affairs, Vol. 28:2, 197-212; G. Ulfstein, ‘Do We Need A World Court of Human Rights?’, in O. Engdahl and P. Wrange (eds.), ‘The Law as It Was and the Law as It Should Be’ (Koninklijke Brill BV.: the Netherlands, 2008).

5_{M. Scheinin, ‘The Added Value of a World Court of Human Rights’, in J.} Kozma, A. Müller-Funk and M. Nowak (eds.), ‘Vienna +20 Advancing the

Protection of Human Rights: Achievements, Challenges and Perspectives 20 Years after the World Conference' (Intersentia: Graz, 2014), p. 143.

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METHOD AND STRUCTURE

The thesis will employ a combination of three different methodologies, namely

descriptive, normative and comparative. With the help of descriptive methodology, the thesis

will examine the procedural aspects of the committees’ major tasks and those of the World Court. Moreover, comparative analysis will be applied in chapter two, in order to contrast the two WCHR projects and outline their advantages and disadvantages. Then the thesis will gradually move to the normative analysis of various drawbacks tainting treaty bodies’ work and foreseeable challenges of the WCHR itself, as well as possible solutions to some of the outlined drawbacks. Furthermore, the normative methodology will extend to the last chapter, which will analyse the WCHR’s potential to replace committee’s individual communications procedure, this way indirectly facilitating committees’ state reports procedure.

The thesis will heavily rely on both, primary and secondary sources. With regard to the secondary sources, extensive references will be made to the works of internationally renowned human rights scholars, such as Philip Alston, Martin Scheinin, Manfred Nowak, Geir Ulfstein, Christian Tomuschat and others. These scholars made significant contributions to the human rights law enforcement area. With regard to the primary sources, the thesis will heavily rely on various UN human rights treaties, the UN Human Rights Office of the High Commissioner for Human Rights (OHCHR) reports, the essential individual communications and of course, the two parallel World Court Draft Statutes alongside their preparatory work. This exact combination of sources will help to provide multifaceted investigation of the still hypothetical institution.

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CHAPTER 1: HUMAN RIGHTS PROTECTION PROVIDED BY

THE UNITED NATIONS HUMAN RIGHTS TREATY BODIES

Human rights treaty bodies were established with a purpose to stimulate and promote human rights implementation and culture. This highly specialized and compartmentalized6 mechanism operates through three distinctive procedures, i.e. state reports, General Comments and individual communications. All of the tasks are significant for human rights implementation. This chapter will examine essential procedural details of all three tasks assigned to the committees. It is vital to assess treaty bodies’ structure and functioning in order to better understand how such bodies would interact with the future World Court of Human Rights.

1.1 FUNCTION, STRUCTURE AND COMPOSITION

Overall, there are nine human rights committees embedded in nine treaties.7 Such human rights treaty bodies have a triple competence, which consists of: 1) examination of state reports; 2) individual complaints procedure; 3) and General Comments.8 However, it is

6_{M. C. Bassiouni and W. A. Schabas, ‘New Challenges for the UN Human Rights}

Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures?’, in M. C. Bassiouni and W. A. Schabas (eds.), ‘A Critical Introduction Assessment of the UN Human Rights Mechanisms’ (Intersentia Uitgevers, 2011), as cited in A. Omogbai, ‘Discussing the Draft Statute of the World Court of Human Rights (2010) as a Replacement for the UN Treaty Bodies’ Individual Communications Procedures’ (2013), Bachelor thesis for the University of Akureyri, p. 3.

7_{The International Covenant on Civil and Political Rights (ICCPR) (1966);}

International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966); the Convention on the Elimination of All Forms of Racial

Discrimination (CERD) (1966); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984); the Convention on the Rights of the Child (CRC) (1989); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CPMW) (1990); the

Convention on the Rights of Persons with Disabilities (CRPD) (2006); and the Convention on the Protection of All Persons from Enforced Disappearance (CPED) (2006); The United Nations Human Rights Office of the High Commissioner, ‘Monitoring the Core International Human Rights Treaties’, accessed through: <

http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx > (page last accessed on 19 April, 2015).

8_{H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and}

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important to note that not all nine of the treaty bodies are entitled to accept individual complaints. Up to date only eight committees can accept communications from individuals.9_In addition to the individual communications procedure, some of the treaty bodies are also entitled to receive inter-state complaints.10 Nevertheless, inter-state communications have not been utilized by State Parties, mainly because of their sensitive political interrelationships.11 Furthermore, several of the treaty bodies also contain a very distinctive power to initiate inquiry procedures (also referred to as fact-finding) on the territory of a State Party adhering to the specific treaty.12 Such power is granted to the CAT, the CEDAW, the CED, the CRPD, the CRC and the CESCR.13

1.1.1 State Reports

Each of the specific tasks that treaty bodies have to carry out has the utmost importance for the promotion and satisfactory domestic implementation of human rights law on a domestic

9_{Namely, the Human Rights Committee (CCPR), the Committee on the}

Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of Persons with Disabilities (CRPD), the Committee on Enforced Disappearances (CED) and the Committee on Economic, Social, Cultural Rights (CESCR) and the Committee on the Rights of the Child (CRC); The United Nations Human Rights Office of the High

Commissioner, ‘Human Rights Bodies – Complaints Procedures’, accessed through: <

http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.asp x > (page last accessed on 19 April, 2015).

10_{Icelandic Human Rights Centre, ‘International Supervisory Mechanisms for} Human Rights’, accessed through: < http://www.humanrights.is/en/human- rights-education-project/human-rights-concepts-ideas-and-fora/part-i-the- concept-of-human-rights/international-supervisory-mechanisms-for-human-rights > (page last accessed on 3 July, 2015); M. Nowak, ‘The Need for a World Court of Human Rights’ (2007) Human Rights Law Review, Vol. 7(1), 251-259, as cited in J. Kirkpatrick, ‘A Modest Proposal: A Global Court of Human Rights’ (2014) Journal of Human Rights, Vol. 13(2), 230-248, p. 235.

11_{Ibid, Icelandic Human Rights Centre.} 12_{Ibid, Keller and Ulfstein, p.3.}

13_{N. Pillay, ‘Strengthening the United Nations Human Rights Treaty Body}

System/ A Report by the United Nations High Commissioner for Human Rights’ (2012) United Nations Human Rights Office of the High Commissioner, p. 70; ‘Inquiry Procedure’, accessed through: <

http://www.ohchr.org/EN/HRBodies/CESCR/Pages/InquiryProcedure.aspx > (page last accessed on 19 April, 2015).

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and global scale.14_{The reporting procedure, however, is committees’ key tool. This is} confirmed by the fact that the wording of human rights treaties makes it mandatory for the State Parties to submit such reports.15

When a state chooses to ratify a certain UN human rights treaty, it commits to submit reports to the adhering committee on a regular basis. All nine treaties require State Parties to issue a first initial compliance report after ratification takes place and then regularly provide compliance reports every four or five years.16 Such high reporting frequency makes it burdensome for State Parties and committees to keep up with the schedule.17 With the years passing by a massive backlog has stacked up. The OHCHR in its 2012 report published statistical data concerning reporting obligations. The Report indicates that in 2011, in total 136 state reports were submitted.18 By the year 2012, 281 state reports were pending examination.19 Yet this number does not include the tremendous amount of 626 overdue state reports announced in 2012. 20 Ironically this significant volume of overdue reports prevents committees’ work from a complete collapse because they ‘[…] can only function by tolerating an 84% rate of non-compliance in reporting’.21 As a result, states, which fail to submit reports on time, do not provide up-to-date information concerning human rights compliance. Consequently, the committees cannot provide the most accurate and proactive investigation of human rights situation within those states.

Nonetheless, it is crucial not to obliterate the invaluable benefits that state reporting procedure provides. Firstly, reporting allows rendering explicit diagnosis and reviewing national laws and policies with explicit focus on their compliance with international human

14_{B. G. Ramcharan, ‘The United Nations High Commissioner for Human Rights/}

The Challenges of International Protection’ (Martinus Nijhoff Publishers: the Hague, 2002), pp. 46-47.

15_{This conclusion was drawn from a reference to G. Ulfstein, ‘Individual}

Complaints’ chapter and multiple references to all nine UN human rights treaties reporting provisions in H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 16.

16_{Ibid, Pillay, p. 20.}

17_{Ibid, Pillay, p. 23; P. Alston and R. Goodman, ‘International Human Rights:}

Text and Materials’ (Oxford University Press, 2013), p. 770; O. De Schutter, ‘International Human Rights Law’ (Cambridge University Press, 2011), pp. 801-802.

18_{Ibid, Pillay, p. 19.} 19_{Ibid, Pillay, p. 19.} 20_{Ibid, Pillay, p. 23.} 21_{Ibid, Pillay, p. 28.}

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rights standards.22_{Secondly, states’ actions are under constant monitoring and supervision.}23 Compliance monitoring by independent experts encourages not only setting long-term goals, but also gathering information and advice on good practices, which are vital for human rights observance. Thirdly, states open up for more public scrutiny, objective of which is to provide a constructive dialogue with states.24 Finally, reporting mechanism is an essential forum for review of states’ treaty reservations.25_{The committees are in a position to request for} justifications and withdrawal of such reservations.26

1.1.2 Individual Communications

Even today, in the 21st century, global society is still shaken by horrid human rights violations.27 In this regard, it is often claimed that human rights treaties are ineffective because they fail to capture states’ interest in enforcing human rights law.28 Despite the clear evidence of still existing human rights violations, the global community should acknowledge the existence of several outstanding mechanisms aimed at strengthening human rights law

22_{‘Committee on Economic, Social and Cultural Rights, General Comment No.}

1’, Reporting by States Parties (1989) (E/1989/22) and ‘Harmonized Guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treat-Specific Targeted Documents’ (HRI/MC/2005/3, 1 June 2005), as cited in O. De Schutter, ‘International Human Rights Law’ (Cambridge University Press, 2011), pp. 794-797.

23_{Ibid, pp. 794-797}_. 24_{Ibid, pp. 794-797}_.

25_{O. De Schutter, ‘International Human Rights Law’ (Cambridge University}

Press, 2011), p. 796.

26_Ibid_.

27_{D. Rushe, E. MacAskill, I. Cobain, A. Yuhas and O. Laughland, ‘Rectal}

Rehydration and Waterboarding:” the CIA Torture Report’s Grisliest Findings’ (2014), accessed through: <

http://www.theguardian.com/us-news/2014/dec/09/cia-torture-report-worst-findings-waterboard-rectal > (page last accessed on 25 April, 2015); R. Tate, ‘Off the Grid: Nine CIA ‘Black Sites’ Where Detainees Were Tortured’ (2014), accessed through: <

https://firstlook.org/theintercept/2014/12/09/map-of-cia-black-sites/ > (page last accessed on 26 April, 2015); Amnesty International, ‘Must Try Harder: Ethnic Discrimination of Romani Children in Czech Schools’ (2015), accessed through: < http://www.amnestyusa.org/research/reports/must-try-harder-ethnic-discrimination-of-romani-children-in-czech-schools > (page last visited on 26 April, 2015).

28_{E. Posner, ‘The Twilight of Human Rights Law’, reviewed by B. A. Simmons,}

‘What’s Right with Human Rights’ (2015) Democracy Journal, Issue 35, accessed through: < http://www.democracyjournal.org/35/whats-right-with-human-rights.php?page=all > (page last accessed on 26 April, 2015).

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enforcement and implementation. One of those achievements is considered to be the individual complaints procedure administered by the various UN human rights committees. Previously this chapter described the committees’ state reports mechanism. However, the state reports procedure is more concentrated on proactive implementation policies and progressive maintenance of human rights by the State Parties. On the other hand, ‘[T]he individual complaints processes serve the valuable function of providing an international avenue for the vindication of an individual’s rights, in the absence of an effective domestic remedy’.29_This way, human rights ‘[…] are put into practical effect’.30 However, the important factor is that the individual communications mechanism is dispersed throughout the United Nations human rights treaties. As a result, the legal basis of communications procedure is established in two different ways. One approach concerns direct integration into the treaty itself, e.g. CERD, Article 14; CAT, Article 22; CPMW, Article 77; CPED, Article 31. Another way allows to opt-in through an optional protocol, e.g. ICCPR, ICESCR, CEDAW, CRC (2011 Optional Protocol), CRPD. However, both procedures are optional and states must provide their explicit consent either through a declaration or ratification of the optional protocols.31

1.1.2.1 Procedural characteristics of the individual communications mechanism

This section will focus on the examination of the individual communications’ structure, admissibility requirements, and decisions on merits.

Before delving into the procedural aspects of the complaints mechanism, it is necessary to look at the structure and nature of the treaty bodies. The most emphasized characteristics of the treaty bodies appear to be their expertise, competence, impartiality and ‘high moral standing’.32

29_{S. Joseph and J. Kyriakakis, ‘The United Nations and Human Rights’ in S.}

Joseph and A. McBeth (eds.), ‘Research Handbook on International Human Rights Law’ (Edward Elgar Press: Cheltenham, 2010), p. 25.

30_{The Office of the United Nations High Commissioner for the Human Rights,}

‘Procedure for Complaints by Individuals under the Human Rights Treaties’, accessed through: <

http://www2.ohchr.org/english/bodies/petitions/individual.htm > (page last accessed on 27 April, 2015).

31_{Article 14(1), CERD; Article 1, First Opt. Prot. ICCPR; Article 1(2), Opt. Prot.}

ICESCR; Article 1, Opt. Prot. CEDAW; Article 22(1), CAT; Article 1(2), Opt. Prot. (2011) CRC; Article 77(1), CPMW; Articles 1(2), Opt. Prot. CRPD; Article 31(1) CPED.

32_{Article 8, CERD; Article 28, ICCPR; Article 17, CEDAW; Article 17, CAT;}

Article 43, CRC; Article 72, CMWC; Ibid, Shelton, p. 51; Ibid, Pillay, pp. 8, 12, 16.

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Committees’ members work in their own capacity and without remuneration.33_{Reluctance to} introduce salaries for the treaty experts is justified by the need for the highest level of independent experts, who would commit to their role without seeking for personal economic gain.34 In addition, experts are expected to be proficient in the specific field of human rights covered by the treaty.35 Nevertheless, all of the experts are appointed by the State Parties. In this regard, four of the human rights conventions, namely CERD, ICCPR, CEDAW and CRC, limit the number of nominees originating from a single State Party.36 On the other hand, the rest of the five conventions, namely ICESCR, CAT, CPMW, CRPD and CPED allow to draw a list of candidates. Unlike the ICCPR, the aforementioned five conventions do not explicitly limit the appointment of more than one candidate from a single Signatory.37

The number of experts within the nine human rights committees was and still is a worrying issue. The number ranges from ten to 25 members, depending on a specific convention.38 Although, the OHCHR emphasized that since 2000 until 2011 the number of experts has increased from 74 to 172.39 Nevertheless, progressive accession to various human rights treaties as well as acceptance of the individual complaints procedure expands committees’ work to an ineffable extent. The OHCHR’s Report from 2012, concerning strengthening the UN human rights treaty bodies, introduced detailed statistical data concerning increased

33_{R. L. Johnstone, ‘Cynical Savings or Reasonable Reform? Reflections on a}

Single Unified UN Human Rights Treaty Body’ (2007), Human Rights Law Review, 7:1, 173-200, p. 177.

34_{P. Alston, ‘Effective Implementation of International Instruments on Human}

Rights, Including Reporting Obligations under International Instruments on Human Rights, Report to the General Assembly’ (1989), A/44/668, para. 106, as cited in R. L. Johnstone, ‘Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body’ (2007), Human Rights Law Review, 7:1, 173-200, p. 188.

35_{Article 28(2), ICCPR; Economic and Social Council, ‘Review of the}

composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights’, Resolution 1985/17, para. (b); Article 17(1), CEDAW; Article 17(1), CAT; Article 43(2), CRC; Article 72(1)(b), CPMW; Article 34(3), CRPD; Article 26(1), CPED. See also, D. L. Shelton, p. 51.

36_{Article 8(2), CERD; Article 29(2), ICCPR allows to nominate more than two}

candidates, however, Article 31(1), ICCPR allows to appoint not more than one expert form a single Member State; Article 17(2), CEDAW; Article 43(3), CRC.

37_Ibid,_{Economic and Social Counci Resolution 1985/17, para. (c); Article}

17(4), CAT; Article 72(3) CPMW; Article 34(6), CRPD; Article 26(3) CPED.

38_{D. L. Shelton, ‘Advanced Introduction to International Human Rights Law’}

(Edward Elgar: Cheltenham, the UK, 2014), p. 51.

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committees’ duties.40_{The nine core human rights treaties and three optional protocols have} 1,586 ratifications; this is very close to a universal acceptance, which would require for 2,123 ratifications.41 Due to such widespread acceptance, treaty bodies should receive about 320 state reports annually.42 Moreover, the statistics concerning individual communications are not less eye-popping. For instance, in 2014 the Human Rights Committee (HRC) alone received 2,371 individual complaints.43 In 1,008 instances the Committee accepted communications and presented its views.44 This is quite an astonishing amount of cases to deal with for a small number of experts. Especially, when one seeks for caution, precision and high level of attention to each and every complaint filed before any of the committees. On the other hand, the European Court of Human Rights (ECtHR) has to deal with much more extensive numbers of cases.45 However, preference for the ECtHR seem to derive from its legally binding jurisdiction, which treaty bodies cannot provide.

After having examined the nature and the key characteristics of the committees themselves, it is necessary to turn to the essential characteristics of the individual complaints procedure. In this regard, I am going to dwell upon the admissibility criteria, which is the most important step for individuals, who seek to enforce their personal human rights through this instrument.

To begin with, it is important to notify that the admissibility criteria are more or less uniform throughout the nine treaty bodies. The criteria contain five key elements: (1)‘the author of the communication must be a ‘victim’ of the violation he/she denounces’; (2)‘the communication may not be anonymous, nor may it constitute an abuse of the right to communication’, plus the complaint must be based on treaty rights that are open for individual invocation and are not subject to any State Party’s reservations; (3) claim cannot be retroactive, therefore, the complaint must relate to a breach occurring after the treaty entered into force for

40_{Ibid, Pillay}_.

41_{Ibid, Pillay, p. 17.} 42_{Ibid, Pillay, p. 19.}

43_{The Office of the United Nations High Commissioner for Human Rightrs,}

‘Statistical survey of individual complaints dealt with by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’ (2014), accessed through: <

http://webcache.googleusercontent.com/search?q=cache:4kO-QkEvHa4J:www.ohchr.org/Documents/HRBodies/CCPR/StatisticalSurvey.xls +&cd=2&hl=lt&ct=clnk&gl=nl > (page last accessed on 30 April, 2015).

44_Ibid_.

45_{European Court of Human Rights, Statistical data from 2014, accessed}

through: < http://www.echr.coe.int/Documents/Stats_annual_2014_ENG.pdf > (page last accessed on 3 July, 2015).

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the State Party (an exception might occur in a case of a continuous breach); (4) the claimant must have exhausted all accessible local remedies; (5)‘the same matter must not have been examined under another procedure of international investigation or settlement or [as under the Opt. Prot. of the ICCPR] it must not be under examination under such procedure at the time of the communication’.46_{Some of the admissibility elements need a more detailed elaboration, as} they involve some essential progressive developments.

First comes the ‘victim’ requirement. Generally, the treaty bodies’ jurisdiction extends to individuals who are personally affected by the breach. For instance, the CAT and CPED reasonably require for the claimant to be a person of flesh and blood because only living persons can experience torture and enforced disappearance.47 However, there is a possibility under some of the conventions to have group actions, actions brought on behalf of individuals or even actions brought by non-human entities, such as non-governmental organisations (NGOs).48 Possibility of a group action is set out in Art. 14(1) CERD, Art. 2 Opt. Prot. ICESCR, Art. 2 Opt. Prot. CEDAW, Art. 5 Opt. Prot. (2011) CRC, Art. 1 Opt. Prot. CRPD. The purpose of the group action was introduced in order to soften the ‘victim’ requirement in certain claims.49 A very good example of the group action occurred in the Jewish Community of

Oslo v. Norway50_{communication, which was brought under the CERD. In this specific}

instance, a group of claimants were not directly affected by the neo-Nazis’ aggressive demonstration. During the consideration of admissibility before the CERD, Norway tried to claim that applicants’ communication was actually an actio popularis claim, because the term ‘groups of individuals’ should amount to ‘[groups] of which every individual member could claim to be a victim of the alleged violation’.51_{In its decision, the Committee held that the} interpretation of the term ‘groups of individuals’, as offered by Norway, would render the explicit allowance for the group action meaningless.52

46_{Ibid, De Schutter, pp. 805-806; Ibid, Shelton, pp. 239-246.}

47_{C. Tomuschat, ‘Human Rights: Between Idealism and Realism’ (Oxford}

University Press, 3rd_{ed., 2014), p. 251.}

48_{M. Odello and F. Seatzu, ‘The UN Committee on Economic, Social and}

Cultural Rights: the Law, Process and Practice’ (Routledge: New York, 2013), p. 81.

49_{Ibid, Tomuschat, p. 252.}

50_{The Jewish Community of Oslo v. Norway [2005], CERD/C/67/D/30/2003.} 51_{Ibid, paras. 4.2-4.3.}

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Moreover, the majority of the conventions allow for an action to be brought on behalf of the victim.53_{However, only ICESCR, CEDAW and CRC actually require for consent in such} instances. Usually, individuals’ official representatives bring communications on their behalf.54 Nevertheless, in the Kovaleva and Kozyar v. Belarus case, the HRC held that victim’s mother and sister could bring a claim on his behalf because the state consciously and irreparably interrupted authorization allowing for the victim’s mother to be his official representative.55 The Committee held that even without an official authorization, close familial relationship with Kovaleva and Kozyar was a ‘[…] sufficient link to justify an author acting on behalf of the alleged victim’.56

The second admissibility requirement concerns ratione temporis jurisdiction. Individuals cannot bring retroactive claims. Nevertheless, it is possible to extend the admissibility of the communication if a breach occurred prior to the entry into force but its effects are still continuing.57

Thirdly, it is necessary to turn to the issue of ‘fourth instance’, namely the exhaustion of local remedies.58 The requirement of fourth instance exists not without a reason. It serves the purpose of allowing states to correct human rights breaches on a national level.59 However, one is not expected to go through remedies, which are not effective, unreasonably lengthy or are

53_{Article 2, Opt. Prot. ICESCR; Article 2, Opt. Prot. CEDAW; Article 22, CAT;}

Article 5(1), Opt. Prot (2011) CRC; Article 77(1), CPMW; Article 1, Opt. Prot. CRPD; Article 31(1), CPED.

54_{Kovaleva and Kozyar v. Belarus [2012], CCPR/C/106/D/2120/2011, para.}

10.2.

55_{Ibid, para. 10.2.}

56_{Official Records of the General Assembly (A/33/40), para. 580; Bazzano v.}

Uruguay [1979] communication No. 5/1977, para. 5; E. B. v. S [1979]

communication No. 29/1978; Drescher v. Uruguay [1983] communication No. 43/1979, para. 3, as cited in Kovaleva and Kozyar v. Belarus [2012],

CCPR/C/106/D/2120/2011, para. 10.2. See also, OHCHR supra n 30.

57_{Article 2(f), Opt. Prot. CRPD; Article 2(b), Opt. Prot. ICESCR; Article 4(2)(e)}

Opt. Prot. CEDAW; Article 7(g), Opt. Prot. (2011) CRC; Article 2(f), Opt. Prot. CRPD. See also, J. L. v. Australia [1994] CCPR/C/45/D/491/1992; Aduayom et. Al. v. Togo [1996] CCPR/C/51/D/422/1990, 423/1990 and 424/1990, as cited in O. De Schutter, ‘International Human Rights Law’ (Cambridge University Press, 2011), pp. 809, 812-813.

58_{Ibid, Shelton, p. 242.}

59_{M. K. v. France, CCPR communication No. 222/1987; Antonion Parra Corral}

v. Spain, CCPR communication No. 1356/2005; Eugene Linder v. Finland, CCPR communication No. 1420/2005, as cited in S. Jansen, ‘The Optional Protocol to the Women’s Convention: An Assessment of Its Effectiveness in Protecting Women’s Rights’, in I. Westendorp (ed.), ‘The Women’s Convention Turned 30: Achievements, Setbacks, and Prospects’ (Intersentia Publishing: Antwerp, 2012), p. 440.

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bound to fail.60_{Furthermore, the HRC exclusively, requires for a State Party to indicate all} available domestic remedies within its response.61_{‘Otherwise, the Committee will assume that} the applicant had no opportunity to assert his/her rights before a domestic court in an effective way’.62

Finally, the communication cannot be concurrently presented before alternative international procedures. This specific criterion exists in order to preserve already scant and limited resources on the international plane.63 This type of judicial economy is necessary to manage the floodgates for claims and also provide access for as many claimants as possible. The majority of the human rights treaties contain very well defined provisions, which prohibit examination of communications that have occurred, or are being examined, under the alternative international procedures, as well as under the certain treaty body itself.64 Nevertheless, Tomuschat accurately pointed out that the flawed wording of the Opt. Prot. ICCPR, Article 5(2)(a) allows instituting proceedings ensuing one after the other.65 This specific provision, therefore, grants ‘[…] an exaggeration of international relief opportunities’.66_{As a response, the Council of Europe requested its State Parties to issue} reservations on Article 5(2)(a) due to concern for the Human Rights Committee not to become an appeal body for the ECtHR.67

After having affirmatively answered the admissibility question, the committees move to the merits of the claim. Usually admissibility and merits phases are considered jointly within a single communication. The whole procedure is examined in writing, without any of the parties participating before the committee.68 Therefore, treaty bodies base their findings solely on written evidence provided by the parties. However, this process has several possible

60_{Ibid, De Schutter, p. 819; Ibid, Shelton, p. 242; Ibid, Tomuschat, p. 257.} 61_{Ibid, Tomuschat, p. 257.}

62_{Ibid, Tomuschat, p. 257.} 63_{Ibid, Tomuschat, p. 258.}

64_{Article 3(1)(c), Opt. Prot. ICESCR; Article 4(2)(a), Opt. Prot. CEDAW; Article}

22(5)(a), CAT; Article 7(d), Opt. Prot. (2011) CRC; Article 77(3)(a), CPMW; Article 2(c), Opt. Prot. CRPD.

65_{Ibid, Tomuschat, p. 258.} 66_{Ibid, Tomuschat, p. 258.}

67_{Res 635 of the Parliamentary Assembly of the Council of Europe, 17}

September 1976, as cited in C. Tomuschat, ‘Human Rights: Between Idealism and Realism’ (Oxford University Press, 3rd_{ed., 2014), p. 258.}

68_{Ibid, Tomuschat, p. 261; Ibid, Shelton, p. 252; C. Tomuschat, ‘Human Rights}

Between Idealism and Realism’ (Oxford University Press, 2003),pp. 179-180, as cited in F. Viljoen, ‘Fact-Finding by UN Human Rights Complaints Bodies – Analysis and Suggested Reforms’, in A. von Bogdandy and R. Wolfrum (eds.), ‘Max Planck Yearbook of United Nations Law’ (2004) Vol. 8, 49-100, p. 63.

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exceptions. For instance, Article 22(4), CAT does not explicitly mention demand for written information, instead it states: ‘[…] consider communications […] in the light of all information made available to it by or on behalf of the individual and by the State Party concerned’.69 Furthermore, the CAT has a self-induced extension of the evidential rules applicable to individual communications.70 In its Rules of Procedure (2002) the CAT Committee declared that it allows both parties and their representatives to submit oral submissions.71 Nonetheless, the CAT Committee has not utilized this development.72 Due to the absence of oral hearings, the treaty bodies’ factual analysis and decisions are limited only to the paper versions of evidence.73 In addition to that, the standard of proof for written evidence is rather low.74

1.1.2.2 Interaction between State Parties and the treaty bodies

The committees, entrusted with carrying out individual complaints procedures, do not have judicial court status; instead they are of a quasi-judicial character.75 Nevertheless, committees have a core similarity with international courts, i.e. their role in determining State Parties’ compliance with their international treaty obligations, via the ‘[interpretation and] application of treaty provisions to specific facts’.76_{Furthermore, the work on individual communications} maintains the ‘judicial spirit’ through committees’ ‘[…] inner qualities of impartiality, objectives and soberness’.77 However, the committees’ views on individual complaints are not

69_{See also, Article 7(1), Opt. Prot. CEDAW; Article 77(5), CPMW.}

70_{F. Viljoen, ‘Fact-Finding by UN Human Rights Complaints Bodies – Analysis}

and Suggested Reforms’, in A. von Bogdandy and R. Wolfrum (eds.), ‘Max Planck Yearbook of United Nations Law’ (2004) Vol. 8, 49-100, p. 63.

71_{Rules of Procedure of the CAT Committee (2002), Doc. CAT/C/4, Rule}

111(4), as cited in F. Viljoen, ‘Fact-Finding by UN Human Rights Complaints Bodies – Analysis and Suggested Reforms’, in A. von Bogdandy and R. Wolfrum (eds.), ‘Max Planck Yearbook of United Nations Law’ (2004) Vol. 8, 49-100, p. 63.

72_{Ibid, Viljoen in Bogdandy and Wolfrum (eds.), pp. 63, 81.} 73_{Ibid, Viljoen in Bogdandy and Wolfrum (eds.), p. 81.} 74_{Ibid, Viljoen in Bogdandy and Wolfrum (eds.), p. 85.}

75_{Ibid, Keller and Ulfstein, p. 74; Ibid, OHCHR, Procedure for Complaints by}

Individuals.

76_{Ibid, Keller and Ulfstein, pp. 75-76; Ibid, Shelton, p. 254.}

77_{Human Rights Committee, ‘General Comment 33, The Obligations of States}

Parties under the Optional Protocol to the International Covenant on Civil and Political Rights’, CCPR/C/GC/33, 5 (2008); C. Tomuschat, ‘Evolving Procedural Rules: The United Nations Human Rights Committee’s First Two Years of

Dealing with Individual Communications’ (1980) 1 HRLJ 249, 255; N. Ando, ‘The Future of Monitoring Bodies – Limitations and Possibilities of the Human Rights Committee’ (1991-1992) CAN HUM RTS YB 169, 172, as cited in D. L.

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legally binding.78_{Geir Ulfstein expressed that the drafters of various UN human rights treaties} did not intend legally binding effect.79_{According to Ulfstein such intention is evident from the} wording of treaty provisions and optional protocols.80 For instance, ICCPR, ICESCR, CEDAW, CAT, CRC, CPMW and CPED characterize committees’ findings as ‘views’. Moreover, CERD and CRPD name such committees’ decisions as ‘suggestions and recommendations’ or ‘comments and recommendations’. Therefore, such sensible wording should not be impinged by claims that committees’ ‘views’ impose legally binding obligations on State Parties, which ‘[…] have [actually] established treaty bodies’.81_{On the other hand,} Martin Scheinin argues that exactly because of the State Parties’ voluntary consent to this dispute resolution mechanism, assenting parties should not simply overturn committees’ authoritative interpretations on a domestic level.82 Scheinin’s words do not imply that treaty bodies provide a binding effect; instead he proposes that signatories should give necessary consideration and effect to experts’ stance on appropriate application and enforcement of relevant treaty rights.83

Treaty bodies’ inability to provide legally binding views has nothing to do with the legal status of the UN human rights treaties themselves. It is well established that once accepted, human rights treaties create legally binding obligations.84_{Nevertheless, ‘[T]he binding force of} the Covenant cannot be used to establish the binding force of the [C]ommittee’s decisions’.85

Shelton, ‘Advanced Introduction to International Human Rights Law’ (Edward Elgar: Cheltenham, the UK, 2014), pp. 255-256.

78_{Ibid, Keller and Ulfstein, p. 75; Ibid, Tomuschat, p. 220; W. Kälin and J.}

Künzli, ‘The Law of International Human Rights Protection’ (Oxford University Press, 2009), p. 225, as cited in G. Ulfstein, ‘Individual Complaints’, in H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 93.

79_{G. Ulfstein, ‘Individual Complaints’, in H. Keller and G. Ulfstein (eds.), ‘UN}

Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 95.

80_{Ibid, p. 95.} 81_{Ibid, p. 95.}

82_{R. Hanski and M. Scheinin, ‘Leading Cases of the Human Rights}

Committee’ (Institute for Human Rights, Åbo Akademi University: Turku, 2nd_{revd. ed., 2007), p.23, as cited in G. Ulfstein, ‘Individual Complaints’, in} H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 92.

83_{Ibid, p. 92.}

84_{United Nations Human Rights Office of the High Commissioner, ‘The United}

Nations Human Rights Treaty System’ (2012), Fact Sheet No. 30, Rev. 1. 85_{G. Ulfstein, ‘Individual Complaints’, in H. Keller and G. Ulfstein (eds.), ‘UN}

Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 96.

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Because of a non-obligatory nature of the committees’ views and recommendations, how can a claimant seek for an effectuation of such views and recommendations? According to André Nollkaemper and Rosanne van Alebeek there are two pathways for the communications’ conclusions to take effect on a national plane. First of all, one should look for enabling legislation implemented within a state.86 Enabling legislation explicitly grants an entitlement or even an obligation for relevant state organs to effectuate committees’ views and recommendations.87 However, such legislation does not automatically allocate legal effect to the committees’ views.88

If states do not issue enabling legislation, the second effectuation pathway entails direct reliance on committees’ views in existing domestic legal procedures.89_{Then it is entirely up to} the national courts to implement/apply such treaty bodies’ views in their rulings according to the domestic laws.90 The HRC in its 2009 Follow-up Progress Report on Individual

Communications introduced some statistical data concerning national courts’ involvement in

the follow-up procedures. The HRC indicated that seven out of nine countries under consideration actually ‘[referred] to their national courts in their follow-up reply’.91_However, only in four out of seven references national courts were able to effectuate HRC’s decisions.92

Despite these two pathways providing effect to the committees’ views, the UN treaty monitoring system witnesses a low level of compliance with the views. For instance, a recent study revealed that in 2009 the HRC had only 12 percent compliance rate.93

86_{A. Nollkaemper and R. van Alebeek, ‘The Legal Status of Decisions by Human}

Rights Treaty Bodies in National Law’ (2011), ACIL Research Paper, No. 2011-02, p. 10.

87_{Ibid, Nollkaemper and Alebeek, pp. 10-11.} 88_{Ibid, Nollkaemper and Alebeek, p. 11.} 89_{Ibid, Nollkaemper and Alebeek, p. 17.} 90_{Ibid, Nollkaemper and Alebeek, p. 17.}

91_{HRC, Follow-up Progress Report of the Human Rights Committee on}

Individual Communications (299), 17 February 2009, UN Doc. CCPR/C/95/4, as cited in A. Nollkaemper and R. van Alebeek, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’ (2011), ACIL Research Paper, No. 2011-02, p. 18.

92_{Ibid, p. 18.}

93_{Open Society Justice Initiative, ‘From Judgment to Justice: Implementing}

International and Regional Human Rights Decisions’ (2010), p. 119-120, as cited in A. Nollkaemper and R. van Alebeek, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’ (2011), ACIL Research Paper, No. 2011-02, p. 3.

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1.1.3 General Comments

General Comments are consolidated statements seeking to distil widely applicable committee’s views and advice on those issues or rights of the adhering treaty, to which it attaches considerable importance.94 Moreover, General Comments facilitate the establishment of the widely accessible jurisprudence, stemming from the committees’ work. 95 The committees’ input in such comments is very broad; they provide thorough legal tests and circumstances determining human rights violations.96 Due to such comprehensive legal analysis domestic courts and states themselves perceive General Comments as authoritative guidance.97 For instance, the Constitutional Court of South Africa used the ICESCR’s General Comment No. 7 in Government of the RSA et al. v. Grootboom case.98 However, such authoritativeness does not stem from the binding effect, rather from states voluntary acceptance of the committees’ professional monitoring and interpretative roles.99

Conclusion

Treaty bodies have to deal with a whole bunch of tasks. Review of state reports and provision of General Comments, are the two dominant tasks. Nevertheless, General Comments function has less volume than the state reports procedure, mainly because the committees have freedom to choose thematic human rights issues that require more attention.100 The purpose of reporting mechanism is to maintain dialogue and supportive environment, which provides tools

94_{P. Alston, ‘The Historical Origins of the Concept of “General Comments” in}

Human Rights Law’ in L. B. de Chazournes and V. G. Debbas (eds.), ‘The

International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab’ (Martinus Nijhoff: the Hague, 2001), pp. 763-776, 775, as cited in H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 117.

95_Ibid_.

96_{H. Keller and L. Grover, ‘General Comments of the Human Rights Committee}

and Their Legitimacy’ in H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), p. 124.

97_{Ibid, Shelton, p. 56.}

98_{(2000) (11) BCLR 1169, as cited in D. L. Shelton, ‘Advanced Introduction to}

International Human Rights Law’ (Edward Elgar: Cheltenham, the UK, 2014), p. 56.

99_{Higgins Interview; Kälin Interview in H. Keller and L. Grover, ‘General}

Comments of the Human Rights Committee and Their Legitimacy’ in H. Keller and G. Ulfstein (eds.), ‘UN Human Rights Treaty Bodies – Law and Legitimacy’ (Cambridge University Press, 2012), pp. 132-133.

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and advice necessary for the greater human rights implementation. On the other hand, the individual communications mechanism is an optional procedure, which puts committees in a position of a quasi-judicial adjudicator. Individual communications follow highly similar process to that of the regular judicial courts. However, treaty bodies are not allowed to issue legally binding decisions.

CHAPTER 2: THE WORLD COURT OF HUMAN RIGHTS –

ORIGINS, STRUCTURE AND CHARACTERISTICS

The Universal Declaration of Human Rights (UDHR) (1948), Article 6 states: ‘Everyone has the right to recognition everywhere as a person before the law’. This provision is the cornerstone of the of human rights law because it confirms that all individuals are equally entitled to the protection of their human rights. Nevertheless, the time has shown that existing regional, international and national human rights mechanisms provide faint human rights protection. The first chapter has already outlined the fact that nowadays-global society is still tormented by immense human rights violations, such as torture, discrimination and denial of right to life. Thus what should be the next step in human rights promotion and protection? A number of human rights activists and scholars embraced the idea of a single judicial body entrusted with an exclusive competence to protect human rights. Consistently this specific proposal is referred to as the World Court of Human Rights.

This chapter will focus on the very idea and character of the WCHR. Also on its history, which is vital for the understanding of the delicate and complicated nature of the proposal. Moreover, the chapter will also analyse the two parallel WCHR Draft Statutes.

2.1 HISTORICAL BACKGROUND

Today, the WCHR proposal is met with a great level of fascination and scepticism. There is a belief that the WCHR is another exorbitant creation initiated by modern scholars. Nonetheless, the proposal for a single judicial body is a long-standing idea. The Australian government made a first proposal for the creation of the International Court of Human Rights

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in 1947101_{, while the post-World War II momentum was still very intense. The proposal was} introduced under the ambit of the Paris Peace Conference (1946).102_{Australian delegates based} their project on a very simple, but coherent foundation. They declared that the introduction of certain human rights provisions in the international arena requires for a separate and independent judicial body. Australian legal logic claimed that ‘[…] where there is a right there ought to be a judicial remedy’.103_{In this regard, Australian delegates claimed that provision of} an individual remedy through international political bodies, such as the UN General Assembly, would only provide “secondary-class justice”.104 On the other hand, complete reliance on national legal systems would impose a great risk of majoritarian will overriding the individual human rights and justice.105 Moreover, Australian delegation believed that the World Court could act as a strong deterrent from future human rights violations.106

Overall, the World Court as proposed by Australia sounds as a viable approach towards human rights protection and enforcement. Then why this idea did not come into realization? The answer is very simple. Global society was not prepared for such a striking innovation on international scale. Traditionally, states expressed worries concerning the real risk to their national sovereignty.107 In addition, concerns were expressed in relation to the scope of the Court’s jurisdiction and possible negative effect on the future human rights law implementation.108

101_{UN Doc. E/CN.4/15 (1947), as cited in M. Nowak, ‘The Rights of Victims of}

Human Rights Violations to A Remedy: The Need for A World Court of Human Rights’ (2014), Nordic Journal of Human Rights, Vol. 32:1, 3-17, p. 5.

102_{A. Devereux, ‘Australia and the Birth of the International Bill of Human}

Rights, 1946-1966’ (Federation Press: Australia, 2005), as cited in J. Kirkpatrick, ‘A Modest Proposal: A Global Court of Human Rights’ (2014), Journal of Human Rights, Vol. 13:2, 230-248, p. 231.

103_{J. Kirkpatrick, ‘A Modest Proposal: A Global Court of Human Rights’ (2014),}

Journal of Human Rights, Vol. 13:2, 230-248, p. 232; M. Nowak, ‘A New World Court of Human Rights: A Role for International Humanitarian Law?’, in R. Kolb and G. Gaggioli (eds.), ‘Research Handbook on Human Rights and

Humanitarian Law’ (Edward Elgar: UK, 2013),p. 532.

104_{Ibid, Devereux, pp. 180-181 in Kirkpatrick, p. 232.} 105_{Ibid, Devereux, pp. 180-181 in Kirkpatrick, p. 232.} 106_{Ibid, Devereux, pp. 180-181 in Kirkpatrick, p. 232.} 107_{Ibid, Devereux, p. 186 in Kirkpatrick, p. 232.} 108_{Ibid, Devereux, p. 186 in Kirkpatrick, p. 232.}

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Eventually, the Australian project gradually faded away, especially after the almost immediate introduction of alternative human rights protection structures, such as the International Penal Tribunals and the High Commissioner for Human Rights.109

2.2 THE TWO PARALLEL WCHR DRAFT STATUTES

Despite the fact that the Australian project vanished in late 40s, the idea of the World Court kept smouldering until the 21st century. Some renowned legal scholars revived the abandoned proposal. What is more, the Statute of the WCHR is being developed through two separate projects.

Julia Kozma, Manfred Nowak and Martin Scheinin have developed the first WCHR project.110_{This small group of scholars released the WCHR Draft Statute in 2010.}111_{The Draft} is a consolidated version of the two separate proposals.112 Their project is a part of the Swiss Government’s “Agenda for Human Rights”, which was introduced to mark the 60th_anniversary of the UDHR.113 The Swiss Government utilized the new momentum that was created by the anniversary and urged national governments, the global society and the UN to approve its Agenda in order to fill in the increasing human rights implementation gap.114

109_{M. Nowak and J. Kozma, ‘A World Court of Human Rights’ (2009), Swiss}

Initiative to Commemorate the 60th_{Anniversary of the UDHR Protecting} Dignity: An Agenda for Human Rights, as cited in J. Kirkpatrick, ‘A Modest Proposal: A Global Court of Human Rights’ (2014), Journal of Human Rights, Vol. 13:2, 230-248, pp. 232-233.

110_{J. Kozma, M. Nowak and M. Scheinin,}_{‘A World Court of Human Rights –} Consolidated Draft Statute and Commentary’ (Neuer Wissenschaftlicher

Verlag: Vienna, 2010).

111_{Ibid, Kozma, Nowak and Scheinin,}_{The Consolidated Draft Statute}_.

112_{Ibid, Nowak in R. Kolb and G. Gaggioli (eds.), p. 531; The Panel on Human}

Dignity, 2011 Report, Protecting Dignity: An Agenda for Human Rights, ‘A World Court of Hyman Rights: Commentary on the Draft Statute’ (2011), p. 62, accessed through: <

http://www.geneva-academy.ch/docs/publications/Panel-humanDignity_rapport2011.pdf > (page last accessed on 14 May, 2015).

113_{Swiss Confederation, Federal Department of Foreign Affairs and Geneva}

Academy of International Humanitarian Law and Human Rights, (ed.), ‘Protecting Dignity: An Agenda for Human Rights’ (Geneva, 2008), as cited in M. Nowak, ‘A New World Court of Human Rights: A Role for International Humanitarian Law?’, in R. Kolb and G. Gaggioli (eds.), ‘Research Handbook on Human Rights and Humanitarian Law’ (Edward Elgar: UK, 2013),p. 531.

114_{T. S. van Heukelom, ‘A World Court of Human Rights?’ (2010), accessed}

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http://www.lowyinterpreter.org/post/2010/05/28/A-World-24

The second Draft Statute of the WCHR is also referred to as the Treaty of Lucknow (2014).115_{A well-known American Attorney, Mark Oettinger, directs this project. He modelled} the Draft with the help of the so-called Design Team.116

The Treaty of Lucknow (2014) was introduced in honour of the famous world citizen No.1 Garry Davis, the founder of the World Service Authority (WSA), which is established in the United States.117

The Treaty of Lucknow got its name from the annual World Judiciary Summit, which is usually held in Lucknow city, India.118 The WSA’s Draft Statute was firstly presented for the world’s Chief Justices and Judges, who gathered in the 15th_{Judiciary Summit in 2014.}119_This was a strategic step by Mark Oettinger to seek for an endorsement of the project through the world’s Chief Justices and Judges, who would later on pressure their domestic governments and communities to support the idea.120

Court-of-Human-Rights.aspx?COLLCC=2132652137& > (page last accessed on 13 May, 2015); Ibid, Nowak in R. Kolb and G. Gaggioli (eds.), p. 531.

115_{The World Court of Human Rights Development Project, the WCHR}

Statute (Current Draft): ‘The Statute of the World Court of Human Rights (The Treaty of Lucknow)’ (2014), accessed through: <

http://www.worldcourtofhumanrights.net/wchr-statute-current-draft > (page last accessed on 13 May, 2015).

116_{The World Court of Human Rights Development Project, Archived}

Meetings, accessed through: <

http://www.worldcourtofhumanrights.net/archived-meetings > (page last accessed on 14 May, 2015).

117_{M. Fox, ‘Garry Davis, Man of No Nation Who Saw One World of No War, Dies}

at 91’ (2013), accessed through: <

http://www.nytimes.com/2013/07/29/us/garry-davis-man-of-no-nation-dies-at-91.html > (page last accessed on 14 May, 2015); The World Service Authority, ‘The Evolution of the Universal Declaration of Human Rights’, accessed through: < http://www.worldservice.org/update.html?s=4 > (page last accessed on 14 May, 2015).

118_{The World Court of Human Rights Development Project, Project Overview,}

accessed through: < http://www.worldcourtofhumanrights.net/project-overview > (page last accessed on 14 May, 2015).

119_Ibid.

120_{See City Montessori School, The 15}th_{International Conference of Chief} Justices of the World on Article 51 of the Constitution of India: ‘Resolution-2014’ unanimously passed by participating Chief Justices and Judges at the closing session of the Conference on 15th_{December 2014, section 2(c), accessed} through: < http://www.cmseducation.org/article51/resolutions.htm > (page last accessed on 14 May, 2015).

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2.3 THE SUBSTANTIVE PROVISIONS OF THE TWO DRAFT STATUTES AND THEIR KEY DIFFERENCES

Both of the Draft Statutes used regional human rights courts, the ICC and the ICJ as points of reference for the essence and the overall design of the WCHR. Nevertheless, a closer examination of the two Drafts reveals some profound differences in relation to structure and organization of the World Court. In order to carry out meaningful and in-depth examination of the two proposals, it is necessary to look into three different aspects of the Court, namely its composition and selection of the judges, the Court’s jurisdiction and admissibility criteria.

2.3.1 Composition and Selection of the Judges

The essence of every court is, of course, its judiciary. Judges are chosen to weigh the scales of justice. For this reason, the selection process of the judges serving in the WCHR should be really well developed, in order to satisfy the need for geographic, cultural and gender representation. Moreover, judges should be people with high morals and necessary level of legal experience in the field of human rights law.

The Court under the Swiss proposal would be combined of 21 judges, all of who would be divided into three Chambers consisting of seven judges. 121 Moreover, each Chamber would contain two Committees combined of three judges each.122_{The proposed WCHR structure} resembles the one of the ECtHR.123_{Such division of the WCHR’s judiciary is found to be} important for the most efficient performance of adjudicative tasks. As the commentary on the Draft Statute declares, Committees would primarily focus on assessing the admissibility of a claim, whereas, the three Chambers would concentrate on the merits of the case.124 Furthermore, the Draft Statute has standard provisions on the election of the judges themselves. The Statute contains a classic provision requiring for judges of a high moral character and with

121_{Ibid, Kozma, Nowak and Scheinin, The Consolidated Draft Statute, Article}

20(11), 27(1), pp. 17, 20, furthermore, procedures regulating the appointment of the judiciary are set out in Articles 20-23 and 31.

27(3), p. 20.

123_{Convention for the Protection of Human Rights and Fundamental Freedoms}

(1950), Article 26(1).

124_{The Panel on Human Dignity, 2011 Report, Protecting Dignity: An Agenda}

for Human Rights, ‘A World Court of Hyman Rights: Commentary on the Draft Statute’ (2011), p. 80, accessed through: <

http://www.geneva-academy.ch/docs/publications/Panel-humanDignity_rapport2011.pdf > (page last accessed on 14 May, 2015).

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an appropriate level of legal experience, especially in the area of human rights law.125_More specifically, the Statute requests for the candidates, ‘[…] who possess the qualifications required in their respective countries for appointment to the highest judicial offices’.126 Selection process consists of each State Party nominating two candidates of both genders.127 Independent and transparent national panels must carry out nominees’ selection procedure.128 Finally, all 21 judges should be selected through a secret ballot carried out collectively by the Assembly of State Parties.129

On the other hand, the Treaty of Lucknow has considerably different provisions on the composition and selection of the judiciary. First of all, the Court would be combined of 15 judges only.130 Having in mind the global character of the Court, such a number of judges might appear problematic, especially in comparison to the 21 judges proposed by the Swiss Draft Statute. It appears that drafters of the Treaty did not consider in depth the difficulties that the existing UN treaty bodies meet. There are eight active human rights treaty bodies, dealing with individual communications procedure, and all of them have between 10-25 experts.131 Nevertheless, experts find it really challenging to deal with all claims on time.132 Of course, it could also be suggested that a lower number of judges might foster easier reach of agreements on decisions. Moreover, the Treaty of Lucknow has also established a standard requirement for the judges to be people of high moral nature with necessary level of international law expertise.133_{Similarly to the Swiss proposal, the Treaty of Lucknow also requires for the} candidates to be ‘[…] disposed to accepting the duties of judicial office’.134_{Furthermore, the} Treaty should be recognized for its precise wording on the geographical representation. For example, Article 23(3) of the Swiss Draft does not allow for two judges to be from a single State Party. Therefore, the Swiss proposal lacks any well-defined requirement on geographical representation, especially because Article 23(4)(b) simply declares that: ‘[T]he States shall

21, p. 18.

21(1), p. 18.

22(3), p. 18.

128_{Ibid, the Panel on Human Dignity, 2011 Report, p. 78.}

23, p. 18.

130_{Ibid, the Treaty of Lucknow (2014), Article 3.} 131_{Ibid, Pillay, p. 27.}

132_{Ibid, Pillay, p. 19.}

133_{Ibid, the Treaty of Lucknow (2014), Articles 3 and 4.} 134_{Ibid, the Treaty of Lucknow (2014), Article 4(B).}

The World Court of Human Rights as a long missing solution for the flaws tainting the functioning of the United Nations Human Rights Treaty Bodies

Faculty of Law

Master Thesis